February 1, 2006

The Two-Edged Sword, Revisited

Paul at Power Line disagrees with my earlier analysis, that the "Alito Rule" will not really take, because Republicans won't follow the Democrats' lead in trashing the system.

He notes that the Alito Rule is one of procedure, not substance, and that Republicans may be willing to match the Gainsayer Party on procedural issues... for the sake of consistency, if nothing else:

As I tried to explain in my post asserting an "Alito rule," the criteria for voting on judicial nominees has a procedural element to it, at least in the sense that it's more important to have a consistently applied rule than to have any particular rule. I think Republican politicians will grasp this. If not, for what it's worth, conservative bloggers will be there to enlighten them. [Emphasis added]

I'm a little skeptical, since to most folks, there is no difference between procedure and substance: voting to filibuster a vote on a judge is the same as voting against that judge, I suspect, in the minds of the average voter; to most folks, the distinction is lawyer-talk.

Thus, if Republican voters are angry at the Democrats for "voting against" a qualified judge, they might well be equally angry at the Republicans for doing the same thing. We skate across thin ice when we neglect the appeal of basic fairness to the American voter... it's one of our core national principles.

But at a deeper level, I'm torn: I don't know whether I hope that Paul is right, because that would help the GOP cause of getting more judicial conservatives on the courts... or hope that Paul is wrong, since I think it's just plain wrong for a minority to filibuster a majority-supported nominee, whether to the bench or a cabinet or other administrative position.

Do we hope for democracy to prevail, whatever the cost? Fiat justicia ruat coelum? Or do we hope for an undemocratic response to preserve future democracy? Paul Mirengoff has, quite deliberately, I am sure, set us a variant on the greatest dilemma in ethics: dare we tolerate the intolerant?

I don't know the answer to that question (though I do know how to integrate some transcendental functions). This is dangerous stuff.

Hatched by Dafydd on this day, February 1, 2006, at the time of 10:26 PM

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Comments

The following hissed in response by: Mr. Michael

I suppose I live in a fantasy world where the Republicans will actually act on principle: If a Democratic Party Candidate rises to the Presidency, and then nominates a person the fill an empty seat on the Supreme Court I fully expect them to determine whether that nominee is COMPETENT, not whether that nominee will do what they ask.

You want a consistant process? So do I. Return the process to the way it was before the Democrats (and earlier sometimes the Republicans) started to make the process some kind of Proxy for Legislative action. Sure, use the hearings to expose exactly what kind of Ginsbergian nightmare the Democrats would nominate, but if the People have chosen a Democrat for President, then they deserve to get the nominee that thier elected leader will put forward.

Deacon's idea, while living up to the standard put in place by Ted Kennedy et al, would be a juvenile reaction on the part of the Republican Senators. Let's hope that instead of 'Sticking it to the Democrats', the Republicans can find a better source of inspiration than Ted Kennedy.

It is an act of principle to vote enmass against a democrat nominee who will not adhere to the cobstitution. What benifit is there to vote for a qualified democrat nominees who will make it up as they go along and ignore the constitution? On principle they should be rejected and the 3 who voted against Ginsburg are the only ones who can claim loyality to the constitution. Get the principle right. It's not who the President is, it's who obeys the constitution.

The above hissed in response by: stealthy at February 1, 2006 11:35 PM

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